Copyright Office Says Landmark Piracy Law Needs Fine-Tuning

In a nearly 200-page report issued Thursday, the U.S. Copyright Office describes how the safe-harbor provision of the Digital Millennium Copyright Act now favors tech companies over rights-holders. After studying the issue for several years and receiving more than 92,000 comments, the Copyright Office reports that “Congress may wish to fine-tune” the statute.

Specifically, the reports takes up Section 512 of the DMCA, a 1998 law that spells out what online service providers must do to be free of copyright liability for infringements on their networks. The statute guides digital services to take reasonable steps to expeditiously remove pirated works upon notice. For almost a quarter century, this law — along with Section 230 of the Communication Decency Act — has been the subject of tremendous court fights and has shaped the evolution of the online ecosphere, from Napster to YouTube to Spotify.

The Copyright Office heard from both tech companies and content creators about the law, and the government ultimately sides with the latter constituency that Section 512 needs tweaking.

“Roughly speaking, many OSPs [Online Service Providers] spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits,” states the report. “Rightsholders reported a markedly different perspective, noting grave concerns with the ability of individual creators to meaningfully use the section 512 system to address copyright infringement and the ‘whack-a-mole’ problem of infringing content reappearing after being taken down. Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’ original intended balance has been tilted askew.”

The full report — read here — provides an analysis of evolving judicial interpretations of Section 512 while getting into subjects like notice requirements, repeat infringer policies and website blocking. Along the way, the Copyright Office appears to call for more regulatory authority, proposes alternative dispute resolution, and makes further legislative recommendations such as some directed targeting of payment processors and advertising networks facilitating piracy.

The study is already generating cheers among large copyright holders and concern in tech quarters. As lawmakers are already eyeing a rewriting of CDA Section 230 (which provides some immunity for interactive computer services on third-party content), the new report figures to up the ante and set off furious lobbying.